Effect given to the recommendations of the committee and the Governing Body - Report No 381, March 2017

Case No 3171 (Myanmar) - Complaint date: 16-NOV-15 - Follow-up

Effect given to the recommendations of the Committee and the Governing Body

1. 59. The Committee last examined this case, in which the complainant alleged anti-union practices, including harassment, discrimination and dismissals of trade union members and officials, as well as interference in union activities, denial of access to workplace and attempts to dismantle the Bagan Hotel Union, carried out by the management of the Bagan Hotel River View, at its June 2016 meeting [see 378th Report, paras 467–493]. On that occasion, the Committee made the following recommendations [see 378th Report, para. 493]:
   • (a) The Committee requests the Government to conduct an investigation into the allegations of anti-union discrimination, harassment and intimidation of union members and officials at the Bagan Hotel River View owned by the KMA Group and if found to be true to ensure an effective remedy, including sufficiently dissuasive sanctions, so that such acts are immediately ceased.
   • (b) The Committee requests the Government to carry out an investigation into the specific allegation of intimidation after a peaceful demonstration of union and non-union members and, if found to be true, to ensure an effective remedy, including sufficiently dissuasive sanctions, so that such acts do not recur.
   • (c) The Committee expects that the final judgment in this case will be issued without delay and requests the Government to provide a copy of the judgment of the Supreme Court once it is handed down.
   • (d) The Committee requests the Government to take measures to bring the union and the employer together with a view to reaching agreement on the specific access of the union officials to the workplace so as to allow for the proper exercise of their functions, with due respect for the rights of property and management. It requests the Government to keep it informed of the progress made in this regard.
   • (e) The Committee asks the Government to review the relevant legislation, in consultation with the employers’ and workers’ organizations concerned, with a view to making any necessary amendments, so as to ensure the effective protection of workers against anti-union discrimination and interference by providing for swift means of redress, appropriate remedies and sufficiently dissuasive sanctions. The Committee encourages the Government to avail itself of ILO technical assistance in this respect and invites it to give consideration to the ratification of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
2. 60. In its communication dated 5 July 2016, the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) indicates that in March 2016, the management of the hotel and the trade union signed an agreement providing for the reinstatement of the five unjustly terminated union leaders and that despite initial delays in negotiations and in securing the leaders’ physical reinstatement, all five union leaders are now back at their jobs and good faith negotiations are under way. The complainant states that the Government’s observations on the complaint appear to have helped generate a positive environment to resolve the dispute and that it is significant that the response did not contest or even comment on the fact that Government bodies themselves recorded the employer’s wish to see the union disbanded and for union leaders to resign from their employment.
3. 61. Referring to the Committee’s recommendation concerning the need to ensure the effective protection of workers against anti-union discrimination and interference by providing for swift means of redress, appropriate remedies and sufficiently dissuasive sanctions, the complainant indicates that the Application of Writs Act, which the Government claims bars it from enforcing its own decisions based on ILO jurisprudence, is a dangerous legal loophole as it allows an appeals process to remain open for up to two years even if both parties to a dispute have reached a settlement. According to the complainant, this can be used to deprive workers from exercising and accessing their rights, and modifying or eliminating this legislation is, therefore, urgent in order to create a climate conducive to the exercise of fundamental trade union rights in Myanmar.
4. 62. In its communication dated 5 October 2016, the Government indicates with regard to recommendation (a) that it has set up a tripartite investigation team into the allegations of anti-union discrimination, harassment and intimidation of union members and officials at the hotel.
5. 63. Regarding the Committee’s requests to provide a copy of the judgment of the Supreme Court of the Union (recommendation (c)) and to take measures to bring the union and the employer together with a view to reaching an agreement on the specific access of the union officials to the workplace (recommendation (d)), the Government reiterates that after numerous conciliation and arbitration efforts concerning the dispute between the chairman of the hotel group and the five union members, the employer was not satisfied with the decisions made and filed an application for a Writ of Certiorari to the Supreme Court of the Union, while paying damages and compensation to the workers in line with the decision of the Arbitration Council. The Government provides a copy of the judgment dated 1 February 2016, in which the Supreme Court did not find a breach of discipline which would justify the dismissal of union members and considered the decision to reinstate the workers and pay them compensation just. However, having found that the Arbitration Council acted outside its competence when it awarded additional compensation to the workers, the arbitration decision was set aside. As a result, the workers had to give back to the employer the additional compensation of 3,065,000 Myanmar (Burma) Kyat (MMK) awarded by the Arbitration Council and the employer reinstated the five workers on 1 June 2016. The Government indicates that the workers have already re-entered their workplace.
6. 64. With regard to its previous commitment to conduct awareness-raising activities to enhance workers’ and employers’ understanding of labour laws, the Government informs that the Ministry of Labour, Immigration and Population has been making earnest efforts to this effect and organized numerous awareness-raising activities at factories, industries, shops and establishments throughout the country. Between April and August 2016, awareness-raising activities on labour laws were conducted in 3,554 factories or establishments located in 14 regions or states and concerned a total of 178,130 attendees.
7. 65. Regarding recommendation (e), the Government enumerates various measures taken to review the legislation, including discussions on the issue with representatives of employers’ and workers’ organizations; bipartite meetings between employers and workers; appointment of an expert in the field of labour policies at the Ministry of Labour, Immigration and Population with the support of the Japanese Government; creation of a Technical Working Group on Labour Law Reforms under the National Tripartite Dialogue Forum in 2015; and establishment of Stakeholders Forums on Labour Law Reforms, which are conducted with the aim of sharing the Government’s plan, vision and progress with the international business and labour community, receiving inputs and feedback on the labour law reform planning process and gaining insights on how to address particular labour challenges based on international experiences – two such forums took place in May 2015 and September 2016. The Government indicates that social dialogue is a priority means for taking measures in the labour law reforms. The Government provides further information in a communication dated 3 March 2017 which will be examined when the Committee next reviews this case.
8. 66. The Committee takes due note of the information provided and observes from the outset that both the complainant and the Government report progress with regard to the labour relations at the hotel and, in particular, the effective reinstatement of the five union members and their access to the workplace following the judgment of the Supreme Court (provided by the Government), as well as ongoing good faith negotiations. The Committee further welcomes the Government’s commitment to enhance workers’ and employers’ understanding of labour laws by means of awareness-raising activities conducted throughout the country.
9. 67. As regards the investigation into the allegations of discrimination, harassment and intimidation of union members and officials at the hotel, the Committee trusts that the tripartite investigation team will conclude its work without delay and requests the Government to keep it informed of the outcome. It further requests the Government to indicate whether this investigation team is also looking into the specific allegations of intimidation after a peaceful demonstration of union and non-union members, and if not, to indicate the steps taken to ensure an investigation into these allegations and ensure an effective remedy, if found to be true.
10. 68. The Committee further notes, on the one hand, the complainant’s allegations that the Application of Writs Act needs to be modified, as it allows an appeals process to remain open for two years even if both parties to a dispute have reached a settlement and can thus deprive workers from exercising and accessing their rights and, on the other hand, the Government’s indication that various measures were undertaken or are envisaged in order to amend existing labour laws. In light of this information and its previous recommendations on this point, the Committee trusts that the labour law reform will continue to progress in consultation with the employers’ and workers’ organizations concerned, with a view to making any necessary amendments, including as appropriate in respect of the Application of Writs Act, so as to ensure the effective protection of workers against anti-union discrimination and interference by providing for swift means of redress, appropriate remedies and sufficiently dissuasive sanctions. The Committee once again encourages the Government to avail itself of the technical assistance of the Office in this regard and invites it to give consideration to the ratification of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).